Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
This office action is in response to amendment filed on 2/13/26. Claims 1,5-8, 18 are amended. Claims 1-20 are pending.
Claim Rejections - 35 USC § 112
Claim 5 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
The amount of transglutaminase of .05-5 tgu/100g wheat flour is not supported for the bakery pre-mix composition. Page 3 of the specification discloses the range for the flour formulation, not for the bakery pre-mix composition.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1,4,5 is/are rejected under 35 U.S.C. 102(a) as being anticipated by Kobayashi ( Jp 2005229907).
For claims 1,4,5, Kobayashi discloses a processed starch consisting of potato starch, pea protein and transglutaminase. The amount of protein is .1-10% by weight of 100% starch ( the claimed range is .0005%-95%) and the transglutaminase is .01-100 units/g of starch ( the claimed range is .0005-.05 u/g). The protein is coated on the starch; thus, the starch is the carrier for the protein. The starch is the total component of the processed starch; thus, the weight based on starch is the same as weight based on the pre-mix composition. The processed starch is considered the same as the bakery pre-mix composition because it’s used in baked products such as bread, caked, cookies etc.. ( see pages 3,4,5)
Claim Rejections - 35 USC § 103
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi ( jp 2005229907).
For claim 2, Kobayashi discloses 100 part starch. The claimed range is up to 99.99%.
A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.")
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kobayashi ( jp 2005229907) in view of Jp 3877600.
Kobayashi does not disclose wheat flour.
Jp 600 discloses improving agent for baked product such as bread. The improver contains wheat flour or starch. The flour or starch is processed to be used in baked products. ( see page 2)
Kobayashi discloses wheat starch can be used as the starch. As shown in Jp600 both flour and starch can be processed to form processed starch to be used in baked products. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use wheat flour instead of starch as an obvious matter of substituting one source of starch for another because the main component in wheat flour is wheat starch and Jp shows that both the flour or the starch can be processed. One would have been motivated to use wheat flour when desiring to have additional protein.
Claim(s) 6-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jp 3877600 in view of Kobayashi ( jp 2005229907) and Schuhmann ( EP 1190624).
For claims 6,7,11 Jp600 discloses a flour formulation comprising a baking quality improving agent. The improving agent contains cereal flours or starches and other improvers such as pea protein and enzyme. The flours used in the improving agent includes wheat flour or starches such as potato starch. The improving agent can be used in the range of .01-40% by weight. ( see paragraphs 0005,0008,0009)
For claims 12-17, Jp 600 discloses forming a dough comprising the quality improving agent, water,sugar, salt, skim milk powder, shortening and kneading to form a dough . ( see example 1)
For claims 18-20, Jp600 discloses leaving the dough and baking the dough to obtain a baked product which is a bread. ( see example 1)
Jp 600 does not disclose adding transglutaminase as in claims 6-7 and the amount of transglutaminase as in claims 8-9 and the amount of protein in claim 10 and amount of wheat flour as in claim 11.
Kobayashi discloses treating starch with transglutaminase and protein to form improving agent for baked products. The transglutaminase modifies the gelatinization characteristics of starch. The enzyme reduces the viscosity. Kobayashi also discloses that it’s known in the art to improve the quality of flour-based product by causing the transglutaminase to act on the flour. The amount of enzyme used in .01-100u/g of starch and the protein is used in amount of .1-10% ( see pages 2-4)
Schuhmann discloses the use of transglutaminase in the production of bakery good from low wheat flour to give improvements in properties. The enzyme is used in amount of 10-5000TGU/100kg of flour ( .0001TGU/g-.05TGU/g). The use of transglutaminase gives minimal softness, stickiness and improves volume (see abstract of Schuhmann).
Jp 600 discloses other improvers including pea protein and enzyme can be added to the processed flour or starch. As shown in Kobayashi and Schuhmann, treatment with transglutaminase on starch having protein improves the gelatinization of the starch and thus enhances the quality of the baked product. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use transglutaminase as the enzyme in the Jp600 improver to obtain the benefits disclosed in Kobayashi. It would have been obvious to follow the guideline of Kobayashi and Schuhmann for the amount of enzyme and to vary the amount depending on the extent of reaction desired. Such determination is within the skill of one in the art through routine experimentation. It would have been obvious to follow the guideline of Kobayashi for the protein amount and to vary depending on the protein content desired. It would have been obvious to use wheat flour as an obvious matter of choice and to vary the amount depending on the product made and taste desired. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) .
Claim(s) 6-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Van Haesendonck ( WO 2019/081718) in view of Schuhmann ( EP 1190624) and Gottmann et al ( 5279839).
For claims 6,7 Van Haesendonck discloses a flour formulation comprising pea protein, wheat flour and transglutaminase. ( see page 3 lines 4-10, page 12 lines 12-17, 25-30. Van Haesendonck discloses flour in the improver in amount of 10-97.5% and includes rice flour, corn flour etc.. ( see col. 3 lines 4-8, col. 10 lines 10-14) Van Haesendonck discloses the gel forming protein is in the range of 2-20% and the protein includes pea protein. ( see page 3 lines 4-10, page 12 lines 12-17). Van Haesendonck discloses a flour formulation comprising wheat flour and the flour improver. The improver is used in amount between 7-60% in the flour formulation.( see page 3 lines 4-17)
For claim 8, Van Haesendonck discloses a flour formulation comprising wheat flour, transglutaminase and pea protein. ( see page 3 lines 4-17 and page 12 lines 12-17, 25-30)
Claim 10, Van Haesendonck discloses a flour formulation comprising 7-60% improver and the improver comprises 2-20% gel forming protein that includes pea protein. Thus, the amount of gel forming protein in the flour formulation can include .14% pea protein as the minimum ( 2/100X 7%)= .14%. This amount fall within the claimed range of .01-1% ( 100-10000ppm) ( see page 3 lines 4-17, page 12 lines 12-17)
For claim 11, Van Haesendonck discloses the amount of wheat flour in the flour formulation is between 40-93%. ( see page 3 lines 15-17)
For claims 12-17 Van Haesendonck discloses forming a batter using the flour formulation. The batter is considered to be the same as the claimed dough and the difference is only in the terminology because there is no limitation defining a dough. The batter in Van Haesendonck discloses the same ingredients. Furthermore, Van Haesendonck disclose a method for preparing a cake product comprising the steps of providing a flour improver, adding the flour improver or the chlorinated flour replacer to a dough and baking the dough to obtain cake product. Thus, Van Haesendonck also discloses a dough. Van Haesendonck discloses adding liquid including water. The batter additionally comprises fat, sugar and egg. Claims 15,17 recites the alternative and/or. Thus, it does not require all the ingredients listed. For claims 16,17, Van Haesendonck discloses mixing to form the batter or dough. ( see page 4 lines 6-24, page 28 lines 15-18 and example 1)
For claim 18-20, Van Haesendonck discloses baking to form baked product. For claim 20, Van Haesendonck discloses baked products including muffin which is a quick bread. The claim does not have any parameter defining bread. ( see page 28 lines 15-19, page 9 lines 5-13)
Van Haesendonck does not disclose specifically disclose the carrier containing wheat flour as in claim 6, the amount of transglutaminase as in claims 8-9 and leaving as in claim 18 .
Schuhmann discloses the use of transglutaminase in the production of bakery good from low wheat flour to give improvements in properties. The enzyme is used in amount of 10-5000TGU/100kg of flour ( .0001TGU/g-.05TGU/g). The use of transglutaminase gives minimal softness, stickiness and improves volume (see abstract of Schuhmann).
Schuhmann also refers to US patent no 5279839 ( Gottmann) which also discloses use of transglutaminase in baked products in amount of 100-10000/kg of flour ( .1-10 unit/g). Gottman discloses the amount can vary depending on the amount of protein of the flour and the way the enzyme is added. If it’s added as part of a baking agent, then the amount can be higher. ( see col. 2 of the patent)
For claim 6, the language “ consist of” in the body of the claim is not limiting and does not exclude other non-wheat flour as disclosed in Van Haesendonck because the preamble language of “ comprising” define the overall claim and does not exclude non-wheat flour. While the claim recites the carrier contain wheat flour, the claim is directed to a flour formation, there is no feature distinguishing the wheat flour as carrier and just wheat flour in the formulation. There is no feature defining carrier. Van Haesendonck discloses wheat flour in the formulation. Thus, it’s considered a carrier. Transglutaminase is known to be used to improve properties of bakery product as shown in Schuhmann and patent 5279839 referred to in Schuhmann. Van Haesendonck discloses the use of transglutaminase in the improver as an agent for modifying the protein as shown on page 12. But, on the bottom of page 20 through top of page 21, Van Haesendonck also discloses adding transglutaminase to the cake batter. As shown in patent 5279839 referred to in Schuhmann, transglutaminase can be added at different point during the processing of bakery product. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add transglutaminase to the flour formulation of Van Haesendonck as it’s known to add transglutaminase as part of baking agent in which baker add together with flour to make dough. All of Van Haesendonck, Schuhmann and patent 5279839 are directed to bakery products containing transglutaminase, it would have been obvious to one of ordinary skill in the art to follow the guideline of Schuhmann and patent 5279839 to determine the optimum amounts depending on the product made, protein content and the properties desired. The determination would only require routine experimentation with the guideline of amount disclosed in Schuhmann and patent no 5279839. Both Schuhmann and patent 5279839 disclose amounts falling within the claimed ranges. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) . It would have been obvious to leaven the dough or batter to cause rising of the dough or batter. Van Haesendonck discloses adding leaving agent which cause leavening.
The amendment necessitates the change in rejection of claims 6-20 and the new ground of rejections.
Response to Arguments
Applicant's arguments filed 2/13/26 have been fully considered but they are not persuasive.
In the response, applicant argues that the amendment to claims 1 and 6 excludes the non-wheat flour over Van Haesendonck. The rejection of claims 1-5 over Van Haesendonck is withdrawn due to amendment. A new rejection sets forth above.
With respect to claims 6-20, the amendment does not define over Van Haesendonck. For claim 6, the language “ consist of” in the body of the claim is not limiting and does not exclude other non-wheat flour as disclosed in Van Haesendonck because the preamble language of “ comprising” define the overall claim and does not exclude non-wheat flour. While the claim recites the carrier contain wheat flour, the claim is directed to a flour formation, there is no feature distinguishing the wheat flour as carrier and just wheat flour in the formulation. There is no feature defining carrier. Van Haesendonck discloses wheat flour in the formulation. Thus, it’s considered a carrier. Applicant further argues that one would not have been motivated to select pea protein since the reference teaches that pea protein is a non-gelling protein source and fails to provide effective crumb resilience in high ratio cake. Applicant points to example 10. This argument is not persuasive. Example is only an exemplified embodiment of the reference; it’s not the totality of the disclosure. Van Haesendonck explicitly discloses on page 12 legume protein including pea as the gel-forming protein. Example 10 shows high ratio cake, the result is not inclusive of all baked products such muffins, cake donut, brownies etc.. Applicant argues there is no reasonable expectation of success of selecting pea protein. The examiner respectfully disagrees because pea protein is explicitly disclosed in Van Haesendonck. Applicant argues that the combination as claimed results in bread with an improved crumb and improved strength. However, there are no properties claimed. Furthermore, the prior art teaches that transglutaminase improves the properties of baked products. The use of pea protein is also disclosed. Thus, the combination as claimed is disclosed. Whatever property results from such combination, it’s obviously inherent the same is present in the prior art. There is no position taken to remove the non-wheat flour in Van Haesendonck because claim 6 does not exclude the non-wheat flour.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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September 14, 2026
/LIEN T TRAN/Primary Examiner, Art Unit 1793
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